On July 18, 2018, the Internal Revenue Service (IRS) released a Practice Unit advising IRS agents on the framework to follow in analyzing the tax treatment of transaction costs incurred by taxpayers in executing business practices. The latest Practice Unit provides guidance to IRS examiners in determining whether transaction costs must be capitalized or can be immediately deducted, and focuses on the so-called INDOPCO regulations contained in Treasury Regulation § 1.263-5. (For more information and background, see here.)

According to the Practice Unit, there is a three-step process applied to analyze a transaction costs issue:

  1. Determine whether the taxpayer is the proper legal entity to take the transaction costs into account for tax purposes;
  2. Determine whether the costs facilitate the transaction; and
  3. Determine how the taxpayer should treat facilitative costs it must capitalize.

The key considerations and outcomes for each step are illustrated in the Practice Unit as follows:

Practice Point: Determining whether transaction costs must be capitalized or can be deducted is sometimes a difficult process. The IRS has attempted to create bright-line rules in this area, but invariably there are factual situations not covered by the INDOPCO regulations and disputes that may arise. Understanding the IRS’s approach to examining transaction costs, as set forth in this Practice Unit, may assist taxpayers under examination in resolving these types of issues.

It was a busy week for the IRS and presented below is our weekly roundup for July 16 – 20, 2018 on significant IRS guidance and tax matters.

July 16, 2018: Last week the IRS issued Notice 2018-60 providing guidance on the corporate bond monthly yield curve, the corresponding spot segment rates used under § 417(e)(3), and the 24-month average rates under § 430(h)(2).

July 16, 2018: The IRS has released Notice 2018-61 clarifying the effect of § 67(g) on trusts and estates with the intent on publishing regulations in the near future.

July 16, 2018: The IRS released Internal Revenue Bulletin No. 2018-29 which includes Rev. Proc. 2018-37 providing specifications for the private printing of red-ink substitutes for the 2018 Forms W-2 and W-3. This procedure will be produced as the next revision of Publication 1141. Rev. Proc. 2017-42 is superseded.

July 17, 2018: Under Rev. Proc. 2018-38, the IRS instructed that organizations exempt from tax under § 501(a), other than those described in § 501(c)(3), are no longer required to report the names and addresses of their contributors on the Schedule B of their Forms 990 or 990-EZ.

July 17, 2018: In Rev. Rul. 2018-21 the IRS announced the Applicable Federal Rates for August 2018.

July 18, 2018: The IRS has released LB&I Process Unit Knowledge Base – Corporate/Business Issues & Credits regarding the rules for capitalizing transaction costs (legal fees, accounting fees, consulting fees, investment advisory service fees and other transaction costs) under Treas. Reg. 1.263(a)-5(a).

July 20, 2018: The IRS published T.D. 9835 amending the definition of qualified matching contributions (QMACs) and qualified nonelective contributions (QNECs) under regulations regarding certain qualified retirement plans.

July 20, 2018: The IRS released it weekly list of written determinations (e.g., Private Letter Rulings, Technical Advice Memorandum, and Chief Counsel Advice).

Special thanks to Christy Vouri-Misso and Greg Berson in our DC office for this week’s roundup.

On May 3 and 4, 2018, the 3rd International Conference on Taxpayer Rights was held in The Netherlands. Participants from every continent (except Antarctica) attended the conference, which focused on good governance and legal remedies. From a US perspective, there were significant discussions on the Taxpayer Bill of Rights (which we have previously written about here. Overall, the conference was tremendously insightful and helpful in understanding tax issues throughout the world and we are very appreciative for being allowed to participate in the panel discussion on Preventing Disputes 2: Taxpayer Rights in the Administrative Phase.

Videos of each panel discussion are now available on YouTube:

Day One:

Day Two:

 

The 4th International Conference on Taxpayer Rights will be held May 23-24, 2019, in Minneapolis, Minnesota. The focus will be on administrative positions and transparency, with issues such as how governments issue guidance, how taxpayers learn about guidance and how much weight is afforded to guidance. More information can be found here.

A domestic corporation’s royalty income derived in connection with business conducted outside the United States generally is eligible for the reduced 13.125 percent effective tax rate on foreign derived intangible income (FDII). To qualify, the licensee must be a foreign person, and the intangible property must be used outside the US for the ultimate benefit of an unrelated foreign person.

For example, the lower rate generally should be available for royalties from licensing intangible property to an unrelated foreign person for use: (1) in the production and sale of products to foreign customers; (2) to provide services to foreign customers; or (3) to sublicense the intangible property to foreign persons.

Royalties from licensing intangible property to an unrelated US corporation that is for use outside the US may not qualify for FDII benefits. Such royalties should qualify, however, if instead the license is with a foreign subsidiary of the US corporation, or if a foreign subsidiary otherwise economically is considered the licensee.

The 13.125 percent tax rate is also available for certain royalties derived from licensing intangible property to related foreign persons. For example, royalties generally should qualify if the related foreign person uses the intangibles outside the United States to (1) produce and sell products to unrelated foreign customers; (2) provide services to unrelated foreign customers, or (3) sublicense the intangibles to unrelated foreign persons. Continue Reading Tax Reform Insight: Eligibility Requirements for Reduced Tax Rate on FDII for Royalties

Presented below is our weekly roundup for July 9 – 13, 2018 on significant IRS matters.

July 9, 2018: The IRS released Internal Revenue Bulletin No. 2018-28 including: Notice 2018-48 (lists the population census tracts designated as qualified opportunity zones); Notice 2018-59 (provides two methods for taxpayers to begin construction for the investment tax credit under Section 48); Announcement 2018-11 (Office of Professional Responsibility [OPR] announces recent disciplinary sanctions); Rev. Rul. 2018-20 (rendering obsolete several previous revenue rulings); and Rev. Proc. 2018-35 (modifying Rev. Proc. 2018-31 regarding accounting methods for citrus plant replanting costs).

July 11, 2018: The IRS issued final regulations (T.D. 9834) addressing inversion transactions structured to avoid the purposes of sections 7874 and 367 and other post-inversion tax avoidance transactions.

July 13, 2018: The IRS issued proposed regulations (REG-103474-18) related to the Code section 6695(g) return preparer penalty amending previous guidance to reflect changes made by 2017 federal tax reform.

July 13, 2018: The IRS released it weekly list of written determination (e.g., Private Letter Rulings, Technical Advice Memorandum and Chief Counsel Advice).

Special thanks to Christy Vouri-Misso and Greg Berson in our DC office for this week’s roundup.

Presented below is a roundup of significant tax cases from the last month. 

Tax Court

  • Van Lanes Recreation Center Corp. v. Commissioner, TC Memo. 2018-92 (June 26, 2018): Judge Paris determined the IRS abused its discretion when the agency revoked a prior favorable determination letter regarding the status of the taxpayer’s employee stock ownership plan under Code section 401(a). The opinion can be found here.
  • Endeavor Partners Fund, LLC v. Commissioner, TC Memo. 2018-96 (June 28, 2018): In Endeavor, Judge Lauber added to the list of decisions disallowing partnership losses due to lack of economic substance. Penalties were avoided, despite an assessment by the Court that “the partnerships’ conduct is plainly deserving” since the IRS failed to secure supervisory approval of the penalties prior to issuance of the FPAAs as required by Code section 6751(b)(1).
  • Donald Guess v. Commissioner, TC. Memo 2018-97 (June 28, 2018): Judge Jacobs removed the guesswork from the statute of limitations questions in Guess, finding that the clearly established elements of fraud warranted an exception to the three-year limitations period, opening the door for assessments and penalties. The fraudulent activity was related to the 2001 and 2002 tax years. The taxpayer was previously convicted of two counts of filing false tax returns for those years.

Federal District Court

  • Scott Logan v. United States, 2:18-cv-00099-JES-MRM (M.D. Fla. June 21, 2018): The US Attorney’s Office in the Middle District of Florida recently invoked the variance doctrine to gain dismissal of two counts in an individual’s attempt to secure a refund of a $2.5 million gross valuation misstatement penalty previously assessed against him. The judgment can be found here: Logan v. United States; No. 2:18-cv-00099.

Appellate Court

  • Alpenglow Botanicals, LLC v. United States, No. 17-1223 (10th Cir. July 3, 2018): The Tenth Circuit confirmed a finding that the IRS has the authority to determine if a taxpayer is engaged in trafficking of a controlled substances for purposes of denying related deductions under Code section 280E. Owners of a medical marijuana dispensary were denied refund claims that would have resulted if the expense deductions were allowed.
  • Hohman v. Eadie, et al, No. 17-1869 (6th Cir. 2018): The Sixth Circuit affirmed the dismissal of claims challenging John Doe summonses seeking certain financial information for individuals and related LLCs, holding the claims are barred by sovereign immunity.

On July 2, 2018, the Internal Revenue Service (IRS) Large Business and International (LB&I) Division announced the identification and selection of five new campaigns. These new campaigns follow the initial 13 campaigns announced on January 31, 2017, followed by 11 campaigns announced on November 3, 2017, 5 campaigns announced on March 13, 2018, and six campaigns announced on May 21, 2018.

The following are the five new LB&I campaigns by title and description:

  • Restoration of Sequestered AMT Credit Carryforward

LB&I is initiating a campaign for taxpayers improperly restoring the sequestered Alternative Minimum Tax (AMT) credit to the subsequent tax year. Refunds issued or applied to a subsequent year’s tax, pursuant to IRC Section 168(k)(4), are subject to sequestration and are a permanent loss of refundable credits. Taxpayers may not restore the sequestered amounts to their AMT credit carryforward. Soft letters will be mailed to taxpayers who are identified as making improper restorations of sequestered amounts. Taxpayers will be monitored for subsequent compliance. The goal of this campaign is to educate taxpayers on the proper treatment of sequestered AMT credits and request that taxpayers self-correct.

  • S Corporation Distributions

S Corporations and their shareholders are required to properly report the tax consequences of distributions. We have identified three issues that are part of this campaign. The first issue occurs when an S Corporation fails to report gain upon the distribution of appreciated property to a shareholder. The second issue occurs when an S Corporation fails to determine that a distribution, whether in cash or property, is properly taxable as a dividend. The third issue occurs when a shareholder fails to report non-dividend distributions in excess of their stock basis that are subject to taxation. The treatment streams for this campaign include issue-based examinations, tax form change suggestions, and stakeholder outreach.

  • Virtual Currency

US persons are subject to tax on worldwide income from all sources including transactions involving virtual currency. IRS Notice 2014-21 states that virtual currency is property for federal tax purposes and provides information on the US federal tax implications of convertible virtual currency transactions. The Virtual Currency Compliance campaign will address noncompliance related to the use of virtual currency through multiple treatment streams including outreach and examinations. The compliance activities will follow the general tax principles applicable to all transactions in property, as outlined in Notice 2014-21. The IRS will continue to consider and solicit taxpayer and practitioner feedback in education efforts, future guidance, and development of Practice Units. Taxpayers with unreported virtual currency transactions are urged to correct their returns as soon as practical. The IRS is not contemplating a voluntary disclosure program specifically to address tax non-compliance involving virtual currency.

  • Repatriation via Foreign Triangular Reorganizations

In December 2016, the IRS issued Notice 2016-73 which curtails the claimed “tax-free” repatriation of basis and untaxed CFC earnings following the use of certain foreign triangular reorganization transactions. The goal of the campaign is to identify and challenge these transactions by educating and assisting examination teams in audits of these repatriations.

  • Section 965 Transition Tax

Section 965 requires United States shareholders to pay a transition tax on the untaxed foreign earnings of certain specified foreign corporations as if those earnings had been repatriated to the US. Taxpayers may elect to pay the transition tax in installments over an eight-year period. For some taxpayers, some or all of the tax will be due on their 2017 income tax return. The tax is payable as of the due date of the return (without extensions).

Earlier this year, LB&I engaged in an outreach campaign to leverage the reach of trade groups, advisors and other outside stakeholders to raise awareness of filing and payment obligations under this provision. The external communication was circulated through stakeholder channels in April 2018.

Practice Point: As the IRS continues to move toward issued-based examinations, campaigns may become more and more important in identifying and auditing certain issues. Taxpayers should be aware of the campaigns and IRS guidance on these areas. As we have previously discussed, Practice Units are helpful tools in understanding the IRS audit process on a particular subject. With limited resources, the IRS must streamline their examination approach. The IRS has determined that there is significant audit risk for taxpayers who have an issue listed in one or the campaigns. If you have one of these issues, be proactive and make sure you have an “audit ready” file in place for when the IRS opens an examination.

Presented below is our weekly roundup for July 2-6, 2018 on significant IRS matters.

June 29, 2018: The IRS announced in IR-2018-146 that they plan to streamline the Form 1040 to shorten and simplify it for the 2019 tax filing season. The new approach would allow all taxpayers to use the same form. Draft of new Form 1040.

July 2, 2018: The IRS released Internal Revenue Bulletin No. 2018-27 including: Notice 2018-56 (updating the corporate bond monthly yield curve); Rev. Rul. 2018-19 (providing the various prescribed rates for federal income tax purposes for July 2018); and REG-106977-18 (proposing amendment to the definition of investment-type property for purposes of tax-advantaged bonds and the arbitrage investment yield restrictions under § 148 that apply to those bonds).

July 2, 2018: The IRS has announced the identification and selection of five Large Business and International compliance campaigns. These are 1) Restoration of Sequestered AMT Credit Carryforward; 2) S Corporation Distributions; 3) Virtual Currency; 4) Repatriation via Foreign Triangular Reorganizations; and 5) Section 965 Transition Tax.

July 6, 2018: The IRS released it weekly list of written determination (e.g., Private Letter Rulings, Technical Advice Memorandum, and Chief Counsel Advice).

Special thanks to Christy Vouri-Misso and Greg Berson in our DC office for this week’s round-up.

The first New York meeting of McDermott’s Tax in the City® initiative in 2018 coincided with the June 21 issuance of the US Supreme Court’s (SCOTUS) highly anticipated Wayfair decision. Just before our meeting, SCOTUS issued its opinion determining that remote sellers that do not have a physical presence in a state can be required to collect sales tax on sales to customers in that state. McDermott SALT partner Diann Smith relayed the decision and its impact on online retailers to a captivated audience. Click here to read McDermott’s insight about the decision.

The event also featured a CLE/CPE presentation on the ethical considerations relative to tax reform by Kristen Hazel, Jane May and Maureen O’Brien, followed by a roundtable discussion on recent tax reform insights led by Britt Haxton, Sandra McGill, Kathleen Quinn and Diann Smith. Below are a few takeaways from last week’s Tax in the City® New York:

  • Supreme Court Update: Wayfair – Jurisdiction to Tax – The 5-4 opinion concluded that the physical presence requirement established by the Court in its 1967 National Bellas Hess decision and reaffirmed in 1992’s Quill is “unsound and incorrect” and that “stare decisis can no longer support the Court’s prohibition of a valid exercise of the States’ sovereign power.” This opinion will have an immediate and significant impact on sales and use tax collection obligations across the country and is something every company and state must immediately and carefully evaluate within the context of existing state and local collection authority. Click here to read McDermott’s insight about the decision.
  • Tax Reform: Ethical Considerations – Because of tax reform, taxpayers face increased uncertainty and will likely face increased IRS/state scrutiny for their 2017 and 2018 returns. Therefore, it’s crucial for taxpayers to be intentional about post-reform planning and compliance by coordinating among various departments (federal tax, state and local tax, employee benefits, treasury, operations, etc.). Taxpayers should understand the weight of various IRS and state revenue authority guidance, the IRS’s authority to issue retroactive regulations within 18 months of passing legislation, and how to take reasonable positions in the absence of guidance. They should also understand that the IRS is allowed more than three years to assess tax, even when there is an omission of global intangible low taxed income (GILTI) or when the tax relates to the Section 965 transition tax.
  • Tax Reform Changes to Employee Compensation and Benefit Deductions – Post-tax reform, all employees of US public companies, private companies with US publicly traded debt, and foreign issuers with ADRs traded on the US market are covered employees subject to the $1 million limit for deductible compensation. Though a grandfather rule applies if existing contracts are not materially modified, key questions about how to apply this rule remain. Tax reform eliminated the employer deduction for transportation subsidies (other than bicycle subsidies). It also reduced employers’ ability to deduct meal and entertainment expenses, and removed employers’ and employees’ ability to deduct moving expenses.
  • False Claims Act and Starbucks – False Claims Act actions involving state tax issues are becoming more and more prevalent. These actions are concerning because state laws often provide for treble damages and/or per occurrence penalties. Read more about McDermott’s win in the Starbucks case here.
  • GILTI’s Effect on State and Local Tax – There is much to-do about GILTI at the state level. Be sure to monitor state legislation and administrative guidance concerning the inclusion of GILTI in the state tax base in the states that are important to your business. The state-level guidance is evolving every day.

We invite all tax professionals who identify as female to continue the conversation and share tax developments with the official LinkedIn group for Tax in the City®! Click here to join.

The next Tax in the City® meetings will take place in the Fall of 2018, in Chicago, New York, Seattle and our inaugural event in Dallas. Please contact Mia Dubinets if you would like to be added to any of the regional Tax in the City® mailing lists, and register for the upcoming events.